OT:RR:CTF:CPMM H293736 APP
Port Director
U.S. Customs and Border Protection
6747 Engle Road
Middleburg Heights, OH 44130
Attn.: Yvette M. Britton, Supervisory Import Specialist
RE: Protest and Application for Further Review Number 4103-13-100031; Tariff classification of a PocketBac hand sanitizer holder
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest Number 4103-13-100031, timely filed on May 3, 2013, on behalf of Beauty Avenues, LLC (“protestant”). The AFR concerns U.S. Customs and Border Protection’s (“CBP”) tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of a PocketBac hand sanitizer holder. We regret the delay.
FACTS:
The instant item is a soft plastic sanitizer holder (approximately 4.5 inches in length) with a basketball charm clip designed to carry a one-ounce sized bottle of anti-bacterial hand sanitizer known as “PocketBac.” The sanitizer holder is designed to wrap around and envelop the distinctive geometric shape of the Pocketbac sanitizer bottle. Each sanitizer holder is a different color and sells for between $1 and $2 each. The sanitizer holder has a loop at one end and is intended to be attached to a carry item such as a backpack or a purse to facilitate the accessibility of the hand sanitizer while “on the go.” Molded onto each of the two sides of the sanitizer holder are the words “Bath and Body Works.” The sanitizer holder is imported and sold without the sanitizer bottle. Below are pictures of the subject sanitizer holder:
The Protest and AFR cover one entry of the subject Pocketbac holder made on April 8, 2012, under subheading 3924.90.56, HTSUS, which provides for “Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics: Other: Other.” On December 14, 2012, the entry was liquidated under subheading 3926.90.99, HTSUS, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other.” This Protest and AFR were filed on May 3, 2013, claiming classification as entered.
ISSUE:
Whether the subject sanitizer holder is classifiable as a household article and hygienic or toilet article of plastics of heading 3924, HTSUS, or as other article of plastics of heading 3926, HTSUS.
LAW AND ANALYSIS:
CBP first notes that the matter is protestable under 19 U.S.C. § 1514(a)(2), as a matter on classification. The AFR was timely filed within 180 days of liquidation of the entries. See Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further review of Protest Number 4103-13-100031 is properly accorded to protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed involves questions of law or fact, which have not been ruled upon by the Commissioner of Customs or his designee, or by the courts.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (“GRIs”) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation (“AUSR”). The GRIs and the AUSR are part of the HTSUS, and are considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level.
The HTSUS provisions under consideration are as follows:
3924 Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics:
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
In interpreting the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) may be utilized. The ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed.
Reg. 35127, 35128 (August 23, 1989).
EN 39.24 states, in relevant part, that:
This heading covers the following articles of plastics: …
(C) Other household articles such as ash trays, hot water bottles, matchbox holders, dustbins, buckets, watering cans, food storage containers, curtains, drapes, table covers and fitted furniture dust covers (slipovers).
(D) Hygienic and toilet articles (whether for domestic or non domestic use) such as toilet sets (ewers, bowls, etc.), sanitary pails, bed pans, urinals, chamber pots, spittoons, douche cans, eye baths; teats for baby bottles (nursing nipples) and finger-stalls; soap dishes, towel rails, tooth brush holders, toilet paper holders, towel hooks and similar articles for bathrooms, toilets or kitchens, not intended for permanent installation in or on walls. However, such articles intended for permanent installation in or on walls or other parts of buildings (e.g., by screws, nails, bolts or adhesives) are excluded (heading 39.25).
EN 39.26 states, in relevant part, that:
This heading covers articles, not elsewhere specified or included, of plastics (as defined in Note 1 to the Chapter) or of other materials of headings 39.01 to 39.14.
They include: … (12) Various other articles such as fasteners for handbags, corners for suit-cases, suspension hooks, protective cups and glides for placing under furniture, handles (of tools, knives, forks, etc.), beads, watch “glasses”, figures and letters, luggage label holders ….
Protestant asserts that the subject sanitizer holder is an “other household article” of heading 3924, HTSUS, or a hygienic and toilet article of heading 3924, HTSUS, because its use is purportedly limited to carrying, conveying, or storing an anti-bacterial gel used for personal hygiene. According to protestant, the sanitizer holder is a household article because even though it is designed to accommodate clipping onto a purse or backpack, there is nothing to prevent the user from clipping the sanitizer holder to an object in the home for convenient access while in the garage, a gardening shed, or a home workshop or home office. Protestant also claims that the sanitizer holder is a hygienic or toilet article because it is intended for use with anti-bacterial liquids for personal hygiene. Protestant argues that heading 3924, HTSUS, is the appropriate classification even if GRI 1 is not possible, by application of GRI 3(a).
At GRI 1, there is no dispute that the instant sanitizer holder is an article of plastics of chapter 39, HTSUS. At issue is the proper classification at the heading level within chapter 39, HTSUS.
Heading 3924, HTSUS, provides for, inter alia, other household articles of plastics. This heading covers tableware, kitchenware, and other household articles “such as ash trays, hot water bottles, matchbox holders, dustbins, buckets, watering cans, food storage containers, curtains, drapes, table covers and fitted furniture dust covers (slipcovers).” EN 39.24(C). All of these exemplars are plastic, used in the household, and reusable. Furthermore, the household articles listed in EN 39.24(C) are utilitarian and decorative in character or function as a receptacle, and are closely associated with household functions and activities, e.g., dustbins and buckets for cleaning, watering cans for watering plants or a garden, and food storage containers which store food products for, and in, a household. However, unlike the exemplars listed in EN 39.24(C), the sanitizer holder is not strictly or primarily used in the household. It is designed to be portable and is attached to a variety of goods such as backpacks, briefcases, or handbags used in a variety of locations. A plastic holder to transport hand sanitizer is not consistent with the function of the exemplars of household articles of heading 3924, HTSUS.
Heading 3924, HTSUS, also provides for hygienic and toilet articles. The exemplars listed in EN 39.24(D) are “toilet sets (ewers, bowls, etc.), sanitary pails, bed pans, urinals, chamber pots, spittoons, douche cans, eye baths; teats for baby bottles (nursing nipples) and finger-stalls; soap dishes, towel rails, tooth brush holders, toilet paper holders, towel hooks and similar articles for bathrooms, toilets or kitchens, not intended for permanent installation in or on walls.” The instant item is designed to hold a small bottle of hand sanitizer and is not of a class or kind principally used in “bathrooms, toilets or kitchens.” It has a loop at one end and is clearly designed to be attached as a carry on item on the go and is not designed to be used in bathrooms, toilets, or kitchens. It is also not a hygienic article in itself even if the gel that is imported and sold separately is considered a hygienic article.
We note that soap dishes and tooth brush holders, even if those items are of the travel variety, are classifiable in heading 3924, HTSUS, because they sit on a bathroom or kitchen counter. A tiny bottle of hand sanitizer is typically not used in bathrooms or in the household when there is soap and water. However, when it is used in bathrooms and in the household, it stays on the bathroom or kitchen counter, and is not put in a travel holder. A hand sanitizer holder is needed to hold and transport a hand sanitizer when away from the bathroom or kitchen, and when there is no access to soap and water. Therefore, the instant hand sanitizer holder is not a hygienic and toilet article of heading 3924, HTSUS.
The household and hygienic articles of heading 3924, HTSUS, in the rulings cited by protestant are distinguishable. The swivel hooks in NY N090859 were mostly hung in the home. The storage organizers of clear molded plastic in NY N180739 were designed to be used for organizing and storing household items such as food storage containers. The reusable travel bottle in NY N024485 and the refillable bottles in NY 893608 were filled with lotions/shampoos or other beauty products, and are used in the bathroom. The plastic drinking tumbler with a pill compartment in NY N132062 was akin to a hot water bottle of heading 3924, HTSUS. The plastic hangers in NY N036320 were used to hang clothes in a closet at home or during travel. The toothbrush tube in NY K88625, the toothbrush cap in NY K88625, the travel denture case with brush in NY N018367, the toothbrush holder in NY J88134, the soap dish in NY K88625, and the travel bag with a molded plastic soap dish/carrier, a molded plastic toothbrush holder, and molded plastic round bottles in HQ 963119 were designed to hold a toothbrush or soap in the bathroom (at home or during travel) and are among the exemplars listed in EN 39.24(D). The plastic tampon holder in NY B85453 was similar to the soap dishes and toothbrush holders listed in EN 39.24. The double thermal bottle carrier and baby products in NY F82948 were hot water bottles and teats for baby bottles, which are among the exemplars listed in EN 39.24(C) and (D).
We note that heading 3926, HTSUS, covers other articles of plastic, many of which are used within a home. EN 39.26 provides a long list of exemplars classified in heading 3926, HTSUS. These exemplars include fasteners for handbags, corners for suitcases, suspension hooks, protective cups and glides for placing under furniture, handles (of tools, knives, forks, etc.), beads, watch “glasses,” figures and letters, and luggage label holders. Even though most of them are primarily used in the home, EN 39.26 reflects that such items are classified in heading 3926, HTSUS, rather than as household articles of heading 3924, HTSUS. Accordingly, the primary location of an article standing alone does not determine the article’s primary function and hence does not make such article classifiable as a household article of heading 3924, HTSUS. See NY N065590, dated
July 14, 2009 (plastic anti-teeth grinding guards were not classified as hygienic articles of
heading 3924, HTSUS, because even though they could be used within the home, they did not promote hygiene and cleanliness).
In NY N233860, dated November 6, 2012, CBP classified a silicone holder designed to fit a portable sanitizer bottle in heading 3926, HTSUS. The holder fitted like a frame around the bottle, leaving each of the panels exposed. The holder incorporated a ring or strap on the top to allow it to be attached to another article, such as a belt loop, a purse strap, or a backpack.
In NY N238530, dated March 12, 2013, CBP classified a silicone plastic holder for a small bottle of hand sanitizer in heading 3926, HTSUS. The holder fitted like a frame around the bottle, leaving each of the panels exposed. The holder incorporated an adjustable strap on the top to allow it to be attached to another article, such as a belt loop, purse strap, or backpack. It had a circular opening at the bottom to accommodate the neck and cap of the bottle, allowing the contents to be dispensed.
In HQ H251141, dated December 15, 2014, CBP classified a portable plastic holder designed to house an interchangeable and replaceable 0.2 fluid ounce air freshener gel disk in heading 3926, HTSUS. The plastic housing was less than 2 inches in diameter and came in more than fifty shapes or fanciful characters including a cupcake, a peace symbol, a ladybug, a flower, and a penguin. The front and back snapped together to enclose the air freshener gel disk within. A hole was designed into the front piece to allow the scent to dissipate. The back piece featured a plastic clip which allowed the unit to attach onto something, such as a car visor. The product was used to freshen the air in the home, auto, or other small space. In its condition as imported, the portable plastic holder was not packaged with the refillable or interchangeable air freshener gel disk.
The instant hand sanitizer holder is very similar to the silicone holders in NY N233860,
NY N238530, and HQ H251141, in that it is wrapped around a hand sanitizer bottle, has a loop on one end, and is intended to be attached to a carry item. Thus, just like the holders above, the instant item is classifiable as other article of plastics under heading 3926, HTSUS.
HOLDING:
By application of GRIs 1 and 6, the subject sanitizer holder is classified under
subheading 3926.90.99, HTSUS, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other.” The 2012 column one, general rate of duty was 5.3% ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at https://hts.usitc.gov/current.
You are instructed to DENY the protest in full.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant, through its counsel, no later than 60 days from the date of this letter. Any reliquidation of the entry, in accordance with the decision, must be accomplished prior to mailing of the decision.
Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel and to the public on the Customs Rulings Online Search System (“CROSS”), at https://rulings.cbp.gov/, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division